Date: 09-23-2013

Case Style: Charles Thompson v. Chrysler Group, LLC

Case Number: CJ-2011-1766

Judge: Tom A. Lucas

Court: District Court, Cleveland County, Oklahoma

Plaintiff's Attorney: John W. Norman, Bradley E. Norman, Scott B. Hawkins, Preston A. Trimble and Elise D. Hayes

Defendant's Attorney: Thomas G. Wolfe, Lyndon W. Whitmire, G. Robert Sonnier, Alison Heather Rodney, Jill Leigh Berry for Chrysler Group, LLC


Anton Joseph Rupert, Walter C. Greenough and Jonathan Judge for Dorel Juvenile Group, Inc.

Michael Woodson for Hypertech, Inc.

Gene Robinson for David Olgle

Description: Charles Thompson and Estate of Lincoln Ogle sued Chrysler Group, LLC, Bob Moore Dodge Chrysler Jeep, LLC, Hypertech, Inc., Dorel Juvenile Group, Inc. dba Cosco Home and Office Products and David M. Ogle on wrongful death theories claiming:

1. This Court has jurisdiction pursuant to 12 Okla. Stat. §2004(F).

2. Plaintiff, Plaintiffs decedent, and the sole heirs of Plaintiffs decedent are and were Oklahoma citizens. Defendant Bob Moore Dodge Chrysler Jeep, L.L.C. is an Oklahoma limited liability company with its principal place of business in Oklahoma, and is therefore deemed to be a citizen of the state of Oklahoma, and Defendant David M. Ogle is an Oklahoma citizen. There is therefore no diversity of citizenship pursuant to 28 U.S.C. 1332(c), and removal of this action to federal court would also be improper pursuant to 28 U.S.C. 144 1(b). Moreover, this case does not involve a federal question, or any other basis for original federal jurisdiction, so removal of this action to federal court on those grounds would also be improper. See Watson v. Philip Morris Companies, Inc. 551 U.S. 142, 127 S.CT. 2301, No. 05-1284 (June 11,2007).

3. This Court has venue of the matter in controversy pursuant to 12 Okia. Stat. §134, 139, and 187, because some one of the Defendants may be summoned in Cleveland County.

4. Plaintiff Charles Thompson (“Plaintiff’) resides in Cleveland County, Oklahoma, and is the Personal Representative of the Estate of Lincoln Ogle. He brings this action on behalf of the Estate and Heirs of Lincoln Ogle pursuant to 12 O.S. §1051-1055.

5. Defendant Chrysler Group, LLC (“Chrysler”) is a foreign limited liability company in Delaware, with its principal place of business in Michigan.

6. Defendant Bob Moore Dodge Chrysler Jeep, L.L.C. (“Bob Moore”) is a domestic limited liability company in Oklahoma.

7. Defendant Hypertech, Inc. (“Hypertech”) is a foreign corporation with its principal place of business in Tennessee.

8. Defendant Dorel Juvenile Group, Inc., also known as COSCO Home and Office Products, (“COSCO”) is a Massachusetts corporation with its principal place of business in Indiana.

9. Defendant David M. Ogle (“Ogle”) is a citizen of Oklahoma and the father of Lincoln Ogle.

CAUSE OF ACTION

10. Chrysler designed, manufactured, marketed, and sold a 2011 Jeep Wrangler Unlimited Rubicon 4X4 (“Jeep” or “Product”), to Bob Moore, a new car dealer that installed and programmed an Accu-Pro (“Accu-Pro” or “Product”) which was designed, manufactured, marketed, and sold by Hypertech. Bob Moore inspected, tested, operated and serviced until it sold the Jeep and Accu-Pro to Ogle on June 14, 2011. COSCO designed, manufactured, marketed, and sold a child restraint (“child restraint” or “product”) to Ogle, who secured it to the child restraint anchorage system in the second row passenger seat of the Jeep.

11. On June 17, 2011, Plaintiffs Decedent Lincoln Ogle, age 21 months, was asleep in the child restraint, and the belts provided with the child restraint were snuggly adjusted around him. On arriving at a Grand Lake cabin in Delaware County, Oklahoma, Ogle placed the gear shift selector in the “Park” position. After the Ogles exited, the Jeep remained parked without moving for some time, during which Lincoln’s mother Sonja regularly checked on Lincoln while assisting with the children of the Ogles hosts as Lincoln’s father helped to prepare the cabin. On returning to see if Lincoln was still sleeping, Sonja discovered the Jeep was gone.

12. On its own, the Jeep had moved into the lake and was sinking.

13. Divers made several attempts to rescue Lincoln but were not able to remove him from the child restraint. Lincoln drowned.

14. Said injuries and harm were the direct and proximate result of the carelessness and negligence of Defendants Chrysler, Bob Moore, Hypertech, and Cosco, individually, by and through their agents, servants, and employees, acting within the scope of their employment, jointly, severally, concurrently, and in concert, as follows, in that said defendants failed to:

(a) adequately study available design criteria and foreseeable failure modes;

(b) adequately manufacture their said products to provide safety in reasonably foreseeable uses and circumstances;

(c) adequately inspect, examine, and test said products in reasonably foreseeable uses and circumstances;

(d) adequately instruct and warn regarding proper assembly, maintenance, safe use, failures and dangers of said products in reasonably foreseeable uses and circumstances;

(e) instruct, caution, and warn regarding the proper and safe use of said products in reasonably foreseeable uses and circumstances;

(f) adequately inspect, examine, test, and maintain said products;

(g) adequately instruct and warn regarding proper operation and safe use of said products in reasonably foreseeable uses and circumstances;

(h) meet applicable standards of care and breached duties owed with regard to said products.

15. Plaintiff has reason to believe other defendants will claim reasonable care was not used by Ogle, who is therefore joined pursuant to Okia. Stat. tit. 12, § 2020.

16. Said injuries and harm were the direct and proximate result of defects in the defendants’ products, for which defects said defendants are strictly liable under the Oklahoma doctrine of Manufacturers Product Liability.

17. The injuries and harm suffered by Lincoln Ogle were permanent, painffil, and progressive, and resulted in his death on June 17, 2011.

18. As a result of the death of Lincoln Ogle, his estate and heirs have and will be damaged in an amount in excess of $10,000.

PRAYER

A part of Oklahoma’s tort reform legislation found at OkIa. Stat. tit. 12, § 2008(A)(2) provides, “Every pleading demanding relief for damages in money in excess of the amount required for diversity jurisdiction pursuant to Section 1332 of Title 28 of the United States Code shall, without demanding any specific amount of money, set forth only that the amount sought as damages is in excess of the amount required for diversity jurisdiction pursuant to Section 1332 of Title 28 of the United States Code, except in actions sounding in contract.” However, this action is not removable for the reasons set forth in Paragraph 2 of this Petition, and to remove this case to federal court would violate Sections 1332 and 1441 of Title 28 of the United States Code.

______________________________

Chrylser Group, LLC appeared and answered as follows:

I. ANSWER

Defendant denies each and every allegation in Plaintiff’s Original Petition except as specifically admitted herein.

JURISDICTION AND VENUE

1. Defendant is without knowledge or information sufficient to form a belief as to the allegations contained in paragraph 1 of the Petition and, therefore, denies same.

2. Defendant admits that this case is not removable. Except as specifically admitted, Defendant is without knowledge or information sufficient to form a belief as to the allegations contained in paragraph 1 of the Petition and, therefore, denies same.

3. Defendant is without knowledge or information sufficient to form a belief as to the allegations contained in paragraph 3 of the Petition and, therefore, denies same.

4. Defendant is without knowledge or information sufficient to form a belief as to the allegations contained in paragraph 4 of the Petition and, therefore, denies same.

5. Defendant admits that it is a foreign company formed under the laws of Delaware and that its principal place of business is in Michigan. To the extent not expressly admitted, Defendant denies the remaining allegations in paragraph 5 of the Petition.

6. Defendant admits the allegations contained in paragraph 6.

7. Defendant is without knowledge or information sufficient to form a belief as to the allegations contained in paragraph 7 of the Petition and, therefore, denies same.

8, Defendant is without knowledge or information sufficient to form a belief as to the allegations contained in paragraph 8 of the Petition and, therefore, denies same.

9. Defendant is without knowledge or information sufficient to form a belief as to the allegations contained in paragraph 9 of the Petition and, therefore, denies same.

CAUSES OF ACTION

10. Defendant admits that it designed and manufactured, in part, the subject Jeep. Defendant further admits that it marketed and sold the subject Jeep to Bob Moore. To the extent not expressly admitted, Defendant is without knowledge or information sufficient to form a belief as to the allegations contained in paragraph 10 of the Petition and, therefore, denies same.

11. Defendant is without knowledge or information sufficient to form a belief as to the allegations contained in paragraph 11 of the Petition and, therefore, denies same.

12. Defendant denies the allegations contained in paragraph 12 of the Petition.

13. Defendant is without knowledge or information sufficient to form a belief as to the allegations contained in paragraph 13 of the Petition and, therefore, denies same.

14. Defendant is without knowledge or information sufficient to form a belief as to the allegations contained in paragraph 14 (a-h) of the Petition and, therefore, denies same.

15. Defendant admits that David Ogle has been named as a defendant,

16. Defendant denies that the subject vehicle is defective. Defendant is without knowledge or information sufficient to form a belief as to the remaining allegations contained in paragraph 16 of the Petition and, therefore, denies same.

17. Defendant is without knowledge or information sufficient to form a belief as to the allegations contained in paragraph 17 of the Petition and, therefore, denies same.

18. Defendant is without knowledge or information sufficient to form a belief as to the allegations contained in paragraph 18 of the Petition and, therefore, denies same.

II. AFFIRMATIVE DEFENSES

Defendant asserts the following defenses:

1. Plaintiff fails to state a claim upon which relief may be granted.

2. If Defendant is found liable as alleged, which it specifically denies, then its percentage of responsibility should be compared to the percentage of responsibility attributed by the trier of fact to each plaintiff, defendant, settling person, and responsible third party pursuant to Restatement (Third) of Torts and 23 0.5. §13 and other applicable law, and any recovery against Defendant should be reduced accordingly.

3. Plaintiff’s injuries and damages, if any, were caused, proximately caused, solely caused, and/or solely proximately caused by the conduct or product of some person or third party including, but not limited to, David Ogle.

4. Plaintiffs’ alleged injuries and damages, if any, were not proximately caused by any product, act, or omission of Defendant.

5. The design and manufacture of the subject 2011 Jeep Wrangler Unlimited Rubicon complied with all applicable Federal Motor Vehicle Safety Standards in effect at the time of manufacture.

6. The accident and the alleged injuries and damages, if any, were caused by the misuse of the subject vehicle.

7. There has been a substantial change or alteration of the subject vehicle and its components after leaving the possession of the manufacturer.

8. Plaintiffs’ alleged injuries and damages, if any, resulted from independent, intervening causes unrelated to any conduct of, or product manufactured or placed into the stream of commerce by Defendant.

9. Defendant denies that any sales or other activities occurring outside the State of Oklahoma can be used in calculating or otherwise form the basis of an award of punitive andlor exemplary damages under the United States Supreme Court’s decision in BMWofNorthAmerica, Inc. v. Gore, 116 S. Ct. 1589 (1996).

10. Defendant reserves the right to assert additional defenses that it may discover in the course of the proceedings of this matter and to which it may be entitled under the law, including case law, statutes and rules, of the jurisdictions whose law may be found to apply to the claims asserted.

III. CONCLUSION AND PRAYER

Defendant prays that Plaintiffs take nothing by this suit, that Defendant be discharged with its costs expended in this matter, and for such other and further relief to which it may be justly entitled.

______________________________

Dorel Juvenile Group, Inc. appeared and answered as follows:

1. This court has jurisdiction pursuant to 12 Okla. Stat. §2004(F).

ANSWER: Defendant admits the allegations of this paragraph.

2. Plaintiff, Plaintiffs decedent, and the sole heirs of Plaintiffs decedent are and were Oklahoma citizens. Defendant Bob Moore Dodge Chrysler Jeep, L.L.C. is an Oklahoma limited liability company with its principal place of business in Oklahoma, and is therefore deemed to be a citizen of the state of Oklahoma, and Defendant David M, Ogle is an Oklahoma citizen. There is therefore no diversity of citizenship pursuant to 28 U.S.C. 1332(c), and removal of this action to federal court would also be improper pursuant to 28 U.S.C. 1441(b). Moreover, this case does not involve a federal question, or any other basis for original federal jurisdiction, so removal of this action to federal court on those grounds would also be improper. See Watson v. Philip Morris Companies, Inc. 551 U.S. 142, 127 S.CT. 2301, No. 05-1284 (June 11, 2007).

ANSWER: Defendant admits that this case does not involve a federal question. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of this paragraph.

3. This Court has venue of the matter in controversy pursuant to 12 Okla. Stat. §134, 139, and 187, because some one of the Defendants may be summoned in Cleveland County.

ANSWER: Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph.

4. Plaintiff Charles Thompson (“Plaintiff”) resides in Cleveland County, Oklahoma, and is the Personal Representative of the Estate of Lincoln Ogle. He brings this action on behalf of the Estate and Heirs of Lincoln Ogle pursuant to 12 0.5. §1051- 1055.

ANSWER: Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph.

5. Defendant Chrysler Group, LLC (“Chrysler”) is a foreign limited liability company in Delaware, with its principal place of business in Michigan.

ANSWER: Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph.

6. Defendant Bob Moore Dodge Chrysler Jeep, L.L.C. (“Bob Moore”) is a domestic limited liability company in Oklahoma.

ANSWER: Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph.

7. Defendant Hypertech, Inc. (“Hypertech”) is a foreign corporation with its principal place of business in Tennessee.

ANSWER: Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph.

8. Defendant Dorel Juvenile Group, Inc., also known as COSCO Home and Office Products, (“COSCO”) is a Massachusetts corporation with its principal place of business in Indiana.

ANSWER: Defendant admits that it is a Massachusetts corporation with its principal place of business in Indiana. Defendant denies all remaining allegations of this paragraph.

9. Defendant David M. Ogle (“Ogle”) is a citizen of Oklahoma and the father of Lincoln Ogle.

ANSWER: Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph.

CAUSE OF ACTION

10. Chrysler designed, manufactured, marketed, and sold a 2011 Jeep Wrangler Unlimited Rubicon 4X4 (“Jeep” or “Product”), to Bob Moore, a new car dealer that installed and programmed an Accu-Pro (“Accu-Pro” or “Product”) which was designed, manufactured, marketed, and sold by Hypertech. Bob Moore inspected, tested, operated and serviced until it sold the Jeep and Accu-Pro to Ogle on June 14, 2011. COSCO designed, manufactured, marketed, and sold a child restraint (“child restraint” or “product”) to Ogle, who secured it to the child restraint anchorage system in the second row passenger seat of the Jeep.

ANSWER: Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph.

11. On June 17, 2011, Plaintiffs Decedent Lincoln Ogle, age 21 months, was asleep in the child restraint, and the belts provided with the child restraint were snuggly adjusted around him. On arriving at a Grand Lake cabin in Delaware County, Oklahoma, Ogle placed the gear shift selector in the “Park” position. After the Ogles exited, the Jeep remained parked without moving for some time, during which Lincoln’s mother Sonja regularly checked on Lincoln while assisting with the children of the Ogles hosts as Lincoln’s father helped to prepare the cabin. On returning to see if Lincoln was still sleeping, Sonja discovered the Jeep was gone.

ANSWER: Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph.

12. On its own, the Jeep had moved into the lake and was sinking.

ANSWER: Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph.

13. Divers made several attempts to rescue Lincoln but were not able to remove him from the child restraint. Lincoln drowned.

ANSWER: Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph.

14. Said injuries and harm were the direct and proximate result of the carelessness and negligence of Defendants Chrysler, Bob Moore, Hypertech, and Cosco, individually, by and through their agents, servants, and employees, acting within the scope of their employment, jointly, severally, concurrently, and in concert, as follows, in that said defendants failed to:

(a) adequately study available design criteria and foreseeable failure modes;

(b) adequately manufacture their said products to provide safety in reasonably foreseeable uses and circumstances;

(c) adequately inspect, examine, and test said products in reasonably foreseeable uses and circumstances;

(d) adequately instruct and warn regarding proper assembly, maintenance, safe use, failures and dangers of said products in reasonably foreseeable uses and circumstances;

(e) instruct, caution, and warn regarding the proper and safe use of said products in reasonably foreseeable uses and circumstances;

(f) adequately inspect, examine, test and maintain said products;

(g) adequately instruct and warn regarding proper operation and safe use of said products in reasonably foreseeable uses and circumstances;

(h) meet applicable standards of care and breached duties owed with regard to said products.

ANSWER: Defendant denies that it was negligent or that it acted in concert with the other defendants. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of this paragraph.

15. Plaintiff has reason to believe other defendants will claim reasonable care was not used by Ogle, who is therefore joined pursuant to OkIa. Stat. fit. 12, § 2020.

ANSWER: Defendant admits the allegations of this paragraph.

16. Said injuries and harm were the direct and proximate result of defects in the defendants’ products, for which defects said defendants are strictly liable under the Oklahoma doctrine of Manufacturers Product Liability.

ANSWER: Defendant denies the allegations of this paragraph.

17. The injuries and harm suffered by Lincoln Ogle were permanent, painful, and progressive, and resulted in his death on June 17, 2011.

ANSWER: Defendant denies that the death of Lincoln Ogle was caused by any negligence on its part. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of this paragraph. 18. As a result of the death of Lincoln Ogle, his estate and heirs have and will be damaged in an amount in excess of $10,000.

ANSWER: Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph.

AFFIRMATIVE DEFENSES

FIRST DEFENSE

Plaintiff has failed to join Sonja Ogle as an indispensable party without whom this action cannot proceed, and the Complaint should therefore be dismissed.

SECOND DEFENSE

Any recovery by Plaintiff may be barred or reduced because Plaintiff’s injuries were caused solely by the acts of third parties over which Defendant had no control.

THIRD DEFENSE

Any recovery by Plaintiff may be barred or reduced by alteration or misuse of the product and/or failure to read or heed the warnings and instructions accompanying the product by persons over whom Defendant had no control.

FOURTH DEFENSE

Defendant complied with all applicable statutes and regulations existing at the time of manufacture that prescribed standards for design, inspection, testing, manufacture, labeling, packaging, warning, or instructions for the use of the product and, therefore, a rebuttable presumption exists that the product was not unreasonably dangerous.

FIFTH DEFENSE

The design, testing and labeling of the subject product was in conformity with the prevailing state of the art in the industry at the time the product was first sold.

SIXTH DEFENSE

Any recovery by Plaintiff may be barred or reduced because of the absence of similar accidents or claims involving the product at issue.

SEVENTH DEFENSE

Defendant may be entitled to a set-off in the event Plaintiff has received payment from any source relating to the subject accident.

______________________________

Bob Moore Dodge Chrysler Jeep, L.L.C. appeared and answered as follows:

I. ANSWER

Defendant denies each and every allegation in Plaintiff’s Original Petition except as specifically admitted herein.

JURISDICTION AND VENUE

1. Defendant is without knowledge or information sufficient to fom a belief as to the allegation contained in paragraph 1 of the Petition and, therefore, denies same.

2. Defendant admits that it is a domestic company. Defendant is without knowledge or information sufficient to form a belief as to the remaining allegations contained in paragraph 2 of the Petition and, therefore, denies same.

3. Defendant is without knowledge or information sufficient to form a belief as to the allegation contained in paragraph 3 of the Petition and, therefore, denies same.

4. Defendant is without knowledge or information sufficient to form a belief as to the allegations contained in paragraph 4 of the Petition and, therefore, denies same.

5. Defendant admits that Chrysler Group LLC is a foreign company formed under the laws of Delaware and that its principal place of business is in Michigan. To the extent not expressly admitted, Defendant denies the remaining allegations in paragraph 5 of the Petition.

6. Defendant admits the allegations contained in paragraph 6 of the Petition.

7. Defendant is without knowledge or information sufficient to form a belief as to the allegations contained in paragraph 7 of the Petition and, therefore, denies same.

8. Defendant is without knowledge or information sufficient to form a belief as to the allegations contained in paragraph 8 of the Petition and, therefore, denies same.

9. Defendant is without knowledge or information sufficient to form a belief as to the allegations contained in paragraph 9 of the Petition and, therefore, denies same.

CAUSES OF ACTION

10. Defendant admits that Chrysler Group LLC designed and manufactured, in part, the subject Jeep. At this time, Defendant is without knowledge or information sufficient to form a belief as to the remaining allegations contained in paragraph 8 of the Petition and, therefore, denies same.

11. Defendant is without knowledge or information sufficient to form a belief as to the allegations contained in paragraph 11 of the Petition and, therefore, denies same. 12, Defendant is without knowledge or information sufficient to form a belief as to the allegations contained in paragraph 12 of the Petition and, therefore, denies same.

13. Defendant is without knowledge or information sufficient to form a belief as to the allegations contained in paragraph 13 of the Petition and, therefore, denies same.

14. Defendant denies the allegations made against it in paragraph 14 and subparts (a-h) of the Petition. Defendant is without knowledge or information sufficient to form a belief as to the allegations made against the other defendants that are contained in paragraph 14 (a-h) of the Petition and, therefore, denies same.

15. Defendant admits that David Ogle has been named as a defendant.

16. Defendant denies the allegations made against it in paragraph 16 of the Petition. Defendant is without knowledge or information sufficient to form a belief as to the allegations made against the other defendants that are contained in paragraph 16 of the Petition and, therefore, denies same.

17. Defendant is without knowledge or information sufficient to form a belief as to the allegations contained in paragraph 17 of the Petition and, therefore, denies same.

18. Defendant is without knowledge or information sufficient to form a belief as to the allegations contained in paragraph 18 of the Petition and, therefore, denies same.

II. AFFIRMATIVE DEFENSES

Defendant asserts the following defenses:

1. Plaintiff fails to state a claim upon which relief may be granted.

2. If Defendant is found liable as alleged, which it specifically denies, then its percentage of responsibility should be compared to the percentage of responsibility attributed by the trier of fact to each plaintiff, defendant, settling person, and responsible third party pursuant to Restatement (Third) of Torts and 23 0.5. § 13 and other applicable law, and any recovery against Defendant should be reduced accordingly.

3. Plaintiff’s injuries and damages, if any, were caused, proximately caused, solely caused, andlor solely proximately caused by the conduct or product of some person or third party including, but not limited to, Martha Ann Wilkerson.

4. Plaintiff’s alleged injuries and damages, if any, were not proximately caused by any product, act or omission of Defendant.

5. The design and manufacture of the subject 2011 Jeep Wrangler complied with all applicable Federal Motor Vehicle Safety Standards in effect at the time of manufacture.

6. The accident and the alleged injuries and damages, if any, were caused by the misuse of the subject vehicle.

7. Plaintiff’s alleged injuries and damages, if any, resulted from independent, intervening causes unrelated to any conduct of, or product manufactured or placed into the stream of commerce by Defendant.

8. Defendant reserves the right to assert additional defenses that it may discover in the course of the proceedings of this matter and to which it may be entitled under the law, including case law, statutes and rules, of the jurisdictions whose law may be found to apply to the claims asserted.

III. CONCLUSION AND PRAYER

Defendant prays that Plaintiff take nothing by this suit, that Defendant be discharged with its costs expended in this matter, and for such other and further relief to which it may be justly entitled.

__________________________________

Hypertech, Inc. appeared and answered as follows:

1. This Defendant admits those allegations and claims contained in Paragraph I of Plaintiffs Petition.

2. This Defendant admits that the Petition as plead, does not involve a federal question. However, this Defendant is without knowledge or information sufficient to form a belief as to the truth of those remaining allegations and claims contained in Paragraph 2 of Plaintiffs Petition and therefore denies the same.

3. This Defendant is without knowledge or information sufficient to form a belief as to the truth of those allegations and claims contained in Paragraph 3 of Plaintiffs Petition and therefore denies the same.

4. This Defendant is without knowledge or information sufficient to form a belief as to the truth of those allegations and claims contained in Paragraph 4 of Plaintiffs Petition and therefore denies the same.

5. This Defendant is without knowledge or information sufficient to form a belief as to the truth of those allegations and claims contained in Paragraph 5 of Plaintiffs Petition and therefore denies the same.

6. This Defendant is without knowledge or information sufficient to form a belief as to the truth of those allegations and claims contained in Paragraph 6 of Plaintiffs Petition and therefore denies the same.

7. This Defendant admits those allegations and claims contained in Paragraph 7 of Plaintiffs Petition.

8. This Defendant is without knowledge or information sufficient to form a belief as to the truth of those allegations and claims contained in Paragraph 8 of Plaintiffs Petition and therefore denies the same.

9. This Defendant is without knowledge or information sufficient to form a belief as to the truth of those allegations and claims contained in Paragraph 9 of Plaintiffs Petition and therefore denies the same.

10. This Defendant is without knowledge or information sufficient to form a belief as to the truth of those allegations and claims contained in Paragraph 10 of Plaintiff’s Petition and therefore denies the same.

11. This Defendant is without knowledge or information sufficient to form a belief as to the truth of those allegations and claims contained in Paragraph 11 of Plaintiff s Petition and therefore denies the same,

12. This Defendant is without knowledge or information sufficient to form a belief as to the truth of those allegations and claims contained in Paragraph 12 of Plaintiff’s Petition and therefore denies the same.

13. This Defendant is without knowledge or information sufficient to form a belief as to the truth of those allegations and claims contained in Paragraph 13 of ffs Petition and therefore denies the same.

14. This Defendant specifically denies that it was negligent or that it acted in concert with the other Defendants and requires strict proof thereof. This Defendant lacks knowledge or information sufficient to form a belief as to the truth of those remaining allegations and claims contained in Paragraph 14 of Plaintiffs Petition and therefore denies the same.

15. This Defendant admits that Plaintiffs have named David Ogle as a Defendant.

16. This Defendant specifically denies those allegations and claims contained in Paragraph 16 of Plaintiffs Petition and therefore requires strict proof thereof.

17. This Defendant is without knowledge or information sufficient to form a belief as to the truth of those allegations and claims contained in Paragraph 17 of Plaintiffs Petition and therefore denies the same.

18. This Defendant is without knowledge or information sufficient to form a belief as to the truth of those allegations and claims contained in Paragraph 18 of Plaintiffs Petition and therefore denies the same.

AFFIRMATIVE DEFENSES

Affirmative Defenses are pleaded by defense counsel based upon information currently known to counsel in order to preserve applicable legal defenses on Hypertech, Inc.’s behalf. Hypertech, Inc. reserves the right to withdraw affirmative defenses or add additional affirmative defenses as the facts of the case become better known through discovery.

FIRST AFFIRMATIVE DEFENSE

Plaintiffs fail to state a claim upon which relief may be granted against this Defendant.

SECOND AFFIRMATIVE DEFENSE

If this Defendant is found liable as alleged, which it specifically denies, then its percentage of responsibility should be compared to the percentage of responsibility attributed by the trier of fact by each Plaintiff, Defendant, settling person, and responsible Third Party, and any recovery against this Defendant should be reduced accordingly.

THIRD AFFIRMATIVE DEFENSE

Plaintiffs injuries and damages, if any, were caused, proximately caused, solely caused, and/or solely proximately caused by the conduct or product of some person or Third Party, over whom this Defendant has no control and for whose conduct or product this Defendant is not responsible.

FOURTH AFFIRMATIVE DEFENSE

Plaintiffs alleged injuries and damages, if any, were not proximately caused by any product, act, or omission of this Defendant.

FIFTH AFFIRMATIVE DEFENSE

The accident and alleged injuries and damage, if any, were caused by the misuse of this Defendant’s product and/or the misuse of other products referenced in Plaintiffs Petition.

SIXTH AFFIRMATIVE DEFENSE

There has been a substantial change or alternation of this Defendant’s product after leaving the possession of the manufacturer.

SEVENTH AFFIRMATIVE DEFENSE

Plaintiffs alleged injuries and damages, if any, resulted from independent intervening causes unrelated to any conduct of, or product manufactured or placed into the stream of commerce by this Defendant.

EIGHTH AFFIRMATIVE DEFENSE

This Defendant complied with all applicable statutes and regulations existing at the time of manufacture that prescribed standards for design, inspection, testing, manufacture, labeling, warning, or instructions for the use of product, and therefore, rebuttable presumption exists that the product was not unreasonable dangerous.

NINTH AFFIRMATIVE DEFENSE

The design, testing, and labeling of this Defendant’s product was in conformity with the prevailing state of the art in the industry at the time the product was first sold.

WHEREFORE, Hypertech, Inc., prays the Plaintiffs take nothing by way of this action, that this action be dismissed, and that 1-lypertech, Inc., be awarded its attorneys fees, costs, and such other relief that the Court may deem just and appropriate. __________________________________

David Ogle appeared and answered as follows:

1. The allegations of paragraph one are denied and strict proof demanded.

2. This Defendant admits the allegations of paragraph two in regards to citizenship of this Defendant. The remaining allegations of paragraph two are denied and strict proof demanded insofar as they relate to this Defendant.

3. The allegations of paragraph three are denied and strict proof demanded.

4. The allegations of paragraph four are admitted.

5. The allegations of paragraph five make no averments against this Defendant and therefore no response is deemed required.

6. The allegations of paragraph six make no averments against this Defendant and therefore no response is deemed required.

7. The allegations of paragraph seven make no averments against this Defendant and therefore no response is deemed required.

8. The allegations of paragraph eight make no averments against this Defendant and therefore no response is deemed requires.

9. The allegations of paragraph nine are admitted.

10. The allegations of paragraph ten make no averments against this Defendant and therefore no response is deemed required.

11. The allegations of paragraph eleven are admitted.

12. The allegations of paragraph twelve are admitted.

13. The allegations of paragraph thirteen are admitted.

14. The allegations of paragraph fourteen make no averments against this Defendant and therefore no response is deemed required.

15. The allegations of paragraph fifteen are denied and strict proof demanded.

16. The allegations of paragraph sixteen make no averments against this Defendant and therefore no response is deemed required.

17. The allegations of paragraph seventeen are admitted.

18. The allegations of paragraph eighteen are admitted.

FIRST DEFENSE

19. Plaintiffs Petition fails to state a claim upon which relief can be granted against this Defendant.

SECOND DEFENSE

20. This Defendant denies specifically any negligence whatsoever on his part as the cause or even contributing factor to the events resulting in the death of Lincoln Ogle.

21. Defendant reserves leave to amend his Answer upon completion and during the course of discovery to set forth additional applicable affirmative defenses. WHEREFORE, premises considered, Defendant, David M. Ogle, prays that Plaintiff take nothing by way of his Petition against this Defendant and that this Defendant have his costs, attorney fees and any additional relief the court deems just and proper for defense of this litigation.

__________________________

Hypertech moved for summary judgment in its favor alleging:

This case arises from an unfortunate accident resulting in the death of young Lincoln Ogle. On June 14, 2011, Mark Ogle, Lincoln’s father, purchased a 2011 Jeep Wrangler Unlimited Rubicon 4x4 (“Jeep”) from a Bob Moore Dodge Chrysler Jeep, LLC (“Bob Moore”). At the time of purchase, the Jeep had non-standard or oversized tires, which affect the odometer and speedometer’s ability to accurately track speed and mileage. Therefore, Bob Moore installed an odometer and speedometer calibrator on the vehicle, which was manufactured by Hypertech.

On June 17, 2011, the Ogles went to Grand Lake for the weekend. The Ogles parked the Jeep in front of a lakeside cabin. Mr. Ogle indicates he placed the vehicle in “park”. While Mr. and Mrs. Ogle were preparing the cabin, young Lincoln was left asleep in the Jeep’s backseat. Mrs. Ogle indicates she checked on Lincoln a couple of times while they were preparing the cabin. On the last occasion she checked on him, the Jeep was gone. The Jeep had rolled down a slope and into the lake. Unfortunately, Lincoln Ogle drowned. Plaintiff has made negligence and products liability claims against Chrysler - the Jeep’s manufacturer, Dorel Juvenile Group, the manufacturer of the juvenile safety seat Lincoln was occupying, and Hypertech, Inc., the manufacturer of the odometer and speedometer calibrator.

The Hypertech calibrator is used to correct the speedometer and odometer readings when a vehicle is equipped with different size tires than what was shipped stock from the factory. A calibrator accomplishes this by updating the vehicle’s electronic configuration register with accurate tire values. The calibrator sends these new tire values through the vehicle’s “onboard diagnostic port”. However, when updating the configuration register, the calibrator does not directly write to or read from any of the vehicle’s programmable control modules, such as the engine control module, transmission control module, or anti-lock brake control module. Therefore, the calibrator has no ability to affect the performance of the engine, transmission, or braking systems.

The Hypertech calibrator was not defective. The calibrator could not cause a Jeep to go from a stopped or parked position to a moving position. Plaintiffs expert witnesses, Neal Mizen and Major Larry Owen, agree. Simply put, after appropriate discovery, the evidence is undisputed that the Hypertech calibrator is not defective and did not cause the unfortunate death of young Lincoln Ogle. Therefore, summary judgment should be granted in Hypertech’s favor.

STATEMENT OF UNDISPUTED FACTS

A. Plaintiff’s Claims

1. On June 14, 2011, Mr. Ogle purchased a 2011 Jeep Wrangler Unlimited Rubicon 4x4 which was designed, manufactured and marketed by Chrysler. He purchased the Jeep from Bob Moore, a new car dealer, that installed and programmed an Accu-Pro speedometer and odometer calibrator, which was designed, manufactured, and sold by Hypertech, Inc. (See Exhibit “1” - Plaintiff’s Petition, ¶10.)

2. On June 17, 2011, Plaintiff’s decedent, Lincoln Ogle, age 21 months, was asleep in a child restraint seat. On arriving at a cabin on Grand Lake, Mr. Ogle placed the gearshift selector in the “park” position. After Mr. and Mrs. Ogle exited, the Jeep remained parked without moving for some time, during which Lincoln Ogle’s mother, Sonya, regularly checked on Lincoln while she and Lincoln’s father helped to prepare the cabin. On returning to see if Lincoln was still sleeping, Sonya discovered the Jeep was gone. (See Exhibit “1” - Plaintiffs Petition, ¶11.)

3. On its own, the Jeep moved into the lake and was sinking. (See Exhibit “1” - Plaintiff s Petition, ¶12.)

4. Divers made several attempts to rescue Lincoln, but were not able to remove him from the child restraint. Unfortunately, Lincoln drowned. (See Exhibit “1” - Plaintiff’s Petition, ¶ 13.)

5. Plaintiff alleges that Lincoln’s death was the result of defective products or the negligence of Defendants Chrysler, Bob Moore, Hypertech, and Cosco. (See Exhibit “1” - Plaintiff’s Petition, ¶14 and 16.)

B. Hypertech’s Odometer and Speedometer Calibrator

6. Hypertech, Inc., manufactures a speedometer and odometer calibrator for Chrysler’s vehicles with the model number “PC52001-1”, which is sold under the “Accu-Pro” brand name. The calibrator is used to correct the speedometer and odometer readings when a vehicle is outfitted with different size aftermarket tires. (See Exhibit “2” - Hypertech’s Response to Interrogatory No. 1.)

7. The calibrator accomplishes this by updating the vehicle’s Configuration Register with new tire values. The new tire values are manually input by the customer or user. (See Exhibit “2” - Hypertech’s Response to Interrogatory No. 1.)

8. The vehicle’s Configuration Register is updated using Chrysler-specific data commands through the vehicle’s Diagnostic Register Connector. The commands sent from the calibrator are derived from Chrysler’s scan tool, which also provides this same capability. The Hypertech calibrator has been tested to verify that it produces the exact same data commands for this operation as the Chrysler scan tool. (See Exhibit “2” - Hypertech’s Response to Interrogatory No. 1.)

9. The updated tire values are sent to the vehicle’s Total Integrated Power Module (TIPM). The TIPM is also known as the gateway or gateway module and allows access to the vehicle’s communication network. (See Exhibit “2” - Hypertech’s Response to Interrogatory No. 1.)

10. The gateway module receives the tire command from the calibrator and routes the command with the new values to the proper vehicle modules. The calibrator never directly updates the individual modules with new tire and gear values. The gateway module handles this operation through the use of the calibrator’s command. The tires size values are the only data items that are changed in the vehicle’s configuration data message. (See Exhibit “2” - Hypertech’s Response to Interrogatory No. 1.)

11. The vehicle’s modules then use the new updated tire value, along with the values read from the vehicle’s wheel speed sensor, to accurately determine the vehicle speed and distance traveled and display the correct speed and odometer readings. (See Exhibit “2” - Hypertech’s Response to Interrogatory No. 1.)

12. The calibrator sends its commands through the vehicle’s onboard diagnostic port. When updating the vehicle’s configuration for tire value, the calibrator does not directly write to or read from any of the vehicle’s programmable control modules, such as the engine control module, transmission control module, or anti-lock brake control module. Parking brake and transmission commands and values are not modified by the Hypertech calibrator. (See Exhibit “2” - Hypertech’s Response to Interrogatory No. 1.)

C. Defendant, Mark Ogle’s Testimony

13. Mr. Ogle was not aware that an odometer and speedometer calibrator was on the Jeep when he purchased it from Bob Moore. He learned this after the fact. (See Exhibit “3” - Deposition of Mark Ogle, page 197, line 19-24.)

14. After Mr. Ogle purchased the vehicle, the odometer and speedometer calibrator worked properly to his knowledge. (See Exhibit “3” - Deposition of Mark Ogle, page 197, line 25 - page 198, line 5.)

15. Since the accident, no one has told Mr. Ogle the Hypertech calibrator had anything to do with the vehicle going into motion and into the lake. (See Exhibit “3” - Deposition of Mark Ogle, page 200, line 5-9.)

D. Testimony of Sonya Ogle

16. Mrs. Ogle is not familiar with Hypertech or its products. (See Exhibit “4” - Deposition of Sonya Ogle, page 142, line 5-7.)

17. Mrs. Ogle is not aware of any problems with the vehicle’s speedometer or odometer. (See Exhibit “4” - Deposition of Sonya Ogle, page 143, line 6-10.)

18. She is not aware of the allegations against Hypertech in this case. (See Exhibit “4” - Deposition of Sonya Ogle, page 142, line 21 - page 143, line 1.)

19. Mrs. Ogle does not recall being told the speedometer had anything to do with the accident. (See Exhibit “4” - Deposition of Sonya Ogle, page 143, line 23 - page 144, line 1.)

E. Plaintiffs Expert Witness Testimony

20. Plaintiff has retained the services of Neal Mizen, a professional engineer to render opinions in this matter. Mr. Mizen testified to his opinion that the Hypertech calibrator had no effect on the accident and did not contribute in any way to the accident. (See Exhibit “5” - Deposition of Neal Mizen, page 166, line 13 - page 167, line 3.)

21. Plaintiff retained the services of retired Major Larry Owen, an accident reconstructionist. Major Owen has no opinions regarding the design or the performance of the Hypertech odometer calibrator. (See Exhibit “6” - Deposition of Major Larry Owen, page 51, line 12-17.)

22. Plaintiff retained services of a professional engineer, Charles Powell. Mr. Powell has no opinions regarding the design or performance of the Hypertech odometer and speedometer calibrator. (See Exhibit “7” - Deposition of Charles Powell, page 162, line 20 - line 24.)

F. Chrysler’s Expert Testimony

23. Chrysler has retained the services of a professional engineer, Robert Kuhn, Jr. Mr. Kuhn is familiar with Hypertech, Inc. (See Exhibit “8” - Deposition of Robert Kuhn, Jr., page 89, line 22-25.)

24. Mr. Kuhn will not be offering any opinions about the design of the Hypertech odometer calibrator. (See Exhibit “8” - Deposition of Robert Kuhn, Jr., page 90, line 1-3.)

25. Mr. Kuhn will not be offering any opinions regarding the performance of the Hypertech odometer calibrator. (See Exhibit “8” - Deposition of Robert Kuhn, Jr., page 90, line 4-6.)

26. Mr. Kuhn will not be offering any opinion regarding whether the Hypertech odometer calibrator played any role in this unfortunate incident. (See Exhibit “8” - Deposition of Robert Kuhn, Jr., page 90, line 14-19.)

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Stipulation and Agreement for Unopposed Entry of Judgment

The signatory parties hereto, hereby stipulate, and the non-signatory parties do not oppose, a finding by this Court, that there is no evidence that the defendants, Bob Moore Dodge Chrysler Jeep, LLC (“Moore”) or Hypertech, Inc., caused or contributed to the incident resulting in the death of Lincoln Ogle and damages asserted by the Plaintiff. The Court, therefore, hereby enters judgment in favor of only Moore and Hypertech, Inc., dismissing them from this case, all parties to pay their own costs.

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Dorel Juvenile Group, Inc. moved for summary judgment in its favor:

1. David Ogle, father of the deceased, has been deposed, but has not testified that there was a defect in the child car seat. He testified:

“Q. Are you aware of any defect with the car seat?

A. I’m not aware.”

(D. Ogle depo., pg. 156).

2. Sonja Ogle, mother of the deceased, has been deposed, but has not testified that there was a defect in the child car seat. She testified:

“Q. As far as you’re concerned, was there anything wrong with the Scenera car seat?

A. No, sir.

Q. Do you blame the car seat for Lincoln’s death?

A. No, sir.”

(S. Ogle depo., pg. 141).

3. Plaintiffs have named Charles Powell as an expert witness on the defect issue, but Dorel has moved for the exclusion of his testimony based on the Daubert principles adopted by the Oklahoma Supreme Court in the case of Christian v. Gray, 65 P.3d 591 (Okla. 2003).

4. No other witness has testified that there was a defect in the child car seat.

ARGUMENT AND AUTHORITIES

Under Oklahoma law, proof of a defect is an essential element in a products liability case. Johnson v. Ford Motor Co., 45 P.3d 86, 91 (Okla. 2002). Here, the only possible witness regarding the defect issue is the Plaintiffs expert, Charles Powell. Thus, neither the father (David Ogle) nor the mother (Sonja Ogle) have testified that there was a defect in the child car seat. Nor has any other witness.

Thus, Plaintiffs defect case rests solely on the testimony of Charles Powell. However, as set forth in Defendant Dorel Juvenile Group, Inc.’s Motion to Exclude the Testimony of Plaintiffs Expert, Charles Powell, Mr. Powell’s expert testimony is inadmissible under the Daubert analysis adopted by the Oklahoma Supreme Court in the case of Christian v. Gray, 65 P.3d 591 (Okla. 2003). Following the Christian decision, the Oklahoma Supreme Court has declared that: “We made it clear, however, that a trial court has a responsibility to insure that an expert’s opinion on causation is something more than ipse dixit, i.e., ‘a bare assertion resting on the authority of an individual.” Worsham v. Nix, 206 OK 67, 145 P.3d 1055, 1068 (2006) (affirming exclusion of expert’s testimony).

As set forth in the motion to exclude Mr. Powell, he has no expertise in the area of child car seats, and he used none of his “materials science” background to reach his opinion. In essence, he is saying one design is safer than another “because I say so,” and that is what the Oklahoma Supreme Court calls prohibited “ipse dixit” testimony, or a “bare assertion resting on the authority of an individual.”

If the Court grants the motion and excludes Charles Powell’s testimony, then there is no proof of a defect, and no reason for a trial. The Court should, in that instance, grant Dorel summary judgment. WHEREFORE, Defendant Dorel Juvenile Group, Inc. respectffilly requests that this Court grant summary judgment dismissing all claims of the Plaintiff against Dorel, together with such other relief as the Court deems just.

Chrysler Group moved for summary judgment in part in its favor, as follows:

This is an automotive product liability la suit that arises from an incident involving a 2011 Jeep Wrangler Rubicon that occ ed arund 1:00 a.m. on the morning of June 17, 2011, in Delaware County, Oklahom4 At the time of the incident, CoDefendant David Ogle and Sonja Ogle parked and exited their Jeep Wrangler, leaving their 2-month old child alone in the vehicle, strtpped in his child safety seat. See Deposition of David Ogle, 93:4-8, 115:24-117:15 (attached and referred to in this motion as Exhibit A); Deposition of Sonja Ogle, 44:17-23, 4:13-16 (attached and referred to in this motion as Exhibit B). Rather than securing hs vehicle and shifting to the Park position or even checking the gear position, Mr. Ogle left the transmission in Drive with the engine running, and the parking brake not eigaged. See Deposition of Gerald Rosenbiuth, 17:21-18:1 (attached and referred to in this motion as Exhibit C); Ex. A at 113:24-114:4.

Over the course of approximately 20 minuted, Mrs. Ogle returned to the vehicle three times to check on the child; on the first two occasions she did not enter the vehicle and she did not remove her child from the running, uisecured vehicle. Ex. A at 122:3-14, 124:4-9; Ex. B at 62:19-2 1, 65:22-66:4. When she rtumed to the vehicle the third time, the Wrangler was no longer in the location where it hd been parked. Ex. B at 68:23-69:8. Mrs. Ogle eventually observed the vehicle in the watr. Ex. B at 70:17-72:24. The Ogles, their friends, and a neighbor attempted to rescue he child from the sinking vehicle. Sadly, all attempts to rescue the child were unsucctss 1. See Plf. 1st Am. Pet. ¶ 13.

B. Causes of Action & Relief Sought

Plaintiff is the executor of the child’s estat . e Plf. 1st Am. Pet. ¶ 4. He seeks to recover damages from Chrysler Group under theöri s of strict liability and negligence. See Plf. 1st Am. Pet. ¶J 14, 16. Plaintiff’s petition all ges that the Wrangler was defective because: (1) the transmission-system contained muth “friction” which allowed a driver to place the vehicle in false, unsecured park referred to as “false park”); and (2) the vehicle did not incorporate an out-of-park alarm. See Plf. 1st Am. Pet. ¶ 14. See also Deposition of Neil Mizen (Plaintiff’s former expert, 117:8-12 (attached and referred to in this motion as Exhibit D). Plaintiff’s current expet, who was retained only in January 2013, opines, differently than the petition, that the Wrangler was defective and unreasonably dangerous because it did not incorpo1ate an out-of-park alarm or similar device to warn the driver that he failed to shift the lefer to Park. Ex. C at 21:16-22:5.

In addition to compensatory damages, Plaintilrf seeks to recover punitive damages from Chrysler Group. See Plf. 1st Am. Pet. ¶ 19-47. laintiff alleges that Chrysler Group consciously disregarded the safety of others by failing to place an out-of-park alarm in the Wrangler even though Chrysler Group knew of he propensity for operators to make mistakes. See Plf. 1st Am. Pet. ¶ 19-47. Plaintiff also contends that Chrysler Group knew about issues with the subject transmission system ased on numerous complaints and recalls related to same. See Plf. 1st Am. Pet. ¶ 28-47.

Chrysler Group denies Plaintiff’s contentions nd denies that Plaintiff is entitled to any recovery from Chrysler Group. See generally, chrysler Group Ans. to Pif. 1st Am. Pet. ¶ 1. Specifically, as to punitive damages, there is no evidence to support an award for such damages and, irrespective of proof, ¶fl award of damages would be unconstitutional as a matter of law. See Chrysler 3r up Ans. to Plf. 1st Am. Pet. ¶J 53- 66. Therefore, summary judgment is appropriate.

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Plaintiff filed a trial brief regarding Oklahoma's Products Liability "Second Impact" Law setting forth the following:

In Lee v. Volkswagen of American, Inc., 1984 OK 48, 688 P.2d 1283, the Oklahoma Supreme Court recognized that a manufacturer has a duty to consider the environment in which its product will be utilized. (citing Larsen v. General Motors, 391 F.2d 495 (8 Cir. 1968)). Recognizing that the manufacturer must consider the situations its product would encounter, the Court held that “[a] manufacturer’s liability for injuries proximately caused by latent defects should not be limited to collisions in which the defect caused the accident, but should extend to situations in which the defect caused injuries over and above that which would have occurred from the accident, but for the defective design.” Id. at 1285. The Court branded these situations as “second impact” cases.

In “second impact” cases, the manufacturer of the defective product is strictly liable in tort for plaintiff’s injuries as a result of the “second impact” Id. (“[T]he manufacturer is liable for damages only for enhanced injuries attributable to the second impact.”). The focal point in “second impact” cases is most often a safety system that fails to protect the victim in an accident sequence. See e.g., Johnson v. Ford Motor Company, 2002 OK 24, 45 P.3d 86 (seat belt malfunction in single-vehicle collision); Lee, 1984 OK 48, 688 P.2d 1283 (door latch in a collision). In adopting “second impact” liability, the Court provided examples of liability for “aggravation” or “enhancement” above the damages that would have been incurred absent the second product not being defective, which illustrates “second impact” liability:

This ‘aggravation’ or ‘enhancement’ can occur in two ways: A plaintiff might suffer an increase in the severity of the injury as a result of the ‘second impact,’ e.g., a worsening of a back injury suffered in the first collision, or aplaintff might suffer an entirely new injury as a result of the ‘second impact,’ e.g., a broken leg in addition to a broken arm. Plaintiff must offer sufficient proof to convince the jury that the defect was responsible for a new injury or enhancement of an injury sustained as a result of the first impact. Thus ‘aggravation’ or ‘enhancement’ are labels applied to second impact injures to avoid confusion with injuries caused by the ‘first impact.’ Id at 1286 (emphasis supplied).

Application of these principles to The Estate of Lincoln Ogle’s case makes the negligence in causing the Jeep to enter the water on the part of any third-party including, Chrysler, Mark Ogle, and Sonja Ogle, irrelevant in Lincoln’s case against Dorel. This case involves two impacts. The first impact was the Jeep colliding with water. The second impact was Lincoln encountering the water and the inability to extricate him from the Dorel child seat’s defective harness clip.

Dorel concedes that it had a duty to consider the environment in which its product will be utilized, particularly given that the purpose of a child safety seat is to protect children in the event of foreseeable vehicle accidents. This includes the need for a child seat to be designed in a way which permits the child to be extricated when faced with imminent danger. Dorel also concedes and parades the fact that Lincoln survived the first impact (the Jeep colliding with the water).

Plaintiff neither asserts a claim for the injuries that Lincoln sustained in the first collision nor argues that the child seat failed to protect Lincoln in the first collision. It is the second impact, Lincoln encountering the water, which is the focal point of this case.

After the Jeep containing Lincoln entered the water, the rescue attempts to extricate Lincoln from his child seat proved futile because the first responders could not release the defective chest clip Dorel designed for its harness retainer. Since it is undisputed that Lincoln survived the first impact, the only issue that remains is whether Dorel’ s defective chest clip caused injuries to Lincoln over and above that which would have occurred merely from the Jeep colliding with water. In other words, did Lincoln sustain an entirely new injury as a result of the “second impact.” As such, the actions that caused the Jeep to enter the water in the first instance does not have any tendency to make the existence of whether Dorel’s chest clip was defective more probable or less probable than it would be without the evidence. Okia. Stat. tit 12, § 2401. Any attempt by Dorel to argue that Chrysler’s, Mark Ogle’s, and/or Sonja Ogle’s negligence caused or contributed to Lincoln’s death would constitute a fortuitous attempt to commingle a third party’s negligence into the causal chain. See Fritts v. McKinne, 1996 OK C1V APP 132, 934 P.2d 371.

Fritts, is on point, and illustrates why Dorel’s attempt to point at earlier accident causation is not allowed. In Fritts, plaintiff was involved in a one-vehicle accident and sustained serious injuries. Id. at 372. The plaintiff bad been drinking prior to the accident. Id. Plaintiff was admitted to the hospital where he was to undergo surgery. Id. When the surgeon performed a tracheostomy prior to surgery so plaintiff could breathe during the procedure, plaintiff began bleeding profusely due to a cut artery. Id. Plaintiff never regained consciousness and died three days later. Id.

Plaintiffs estate brought a medical malpractice suit against the doctor who performed the tracheostomy. Id. In response, the doctor alleged that plaintiff was comparatively negligent contending that plaintiff was injured while driving drunk. Id. Plaintiff filed a motion in limine, requesting that the trial court exclude any mention of plaintiffs use of drugs or alcohol. Id. In response, the doctor argued that evidence of plaintiff’s intoxication was relevant because his injuries arose in the accident that he caused and that such intoxication was the sole cause of his death. Id. The trial court denied plaintiffs motion and allowed evidence of plaintiffs intoxication into evidence and instructed the jury on the issue of comparative negligence. Id. The jury returned a verdict in favor of the doctor and Plaintiff appealed. Id.

The Oklahoma Court of Appeals reversed finding that plaintiffs earlier possible negligence in causing the accident was not relevant to his medical malpractice claim. Id. at 374. The Court concluded “that the interjection of the issue of [plaintiffs] possible negligence in the automobile accident, a matter unrelated to the medical procedures, was a substantial error that removed the jury’s consideration from the relevant issues and led to an erroneous excursion into irrelevant and highly prejudicial matters.” Id. (emphasis in original). The Court reasoned that “[t]hose patients who may have negligently injured themselves are nevertheless entitled to subsequent non-negligent medical treatment and to an undiminished recovery if such subsequent non-negligent treatment is not afforded.” Id. (citations omitted).

As in Fritts, it is anticipated that Dorel will argue that Chrysler, Mark Ogle, and/or Sonja Ogle were the sole cause of Lincoln’s death and interject the issue of their possible negligence in causing the automobile accident, a matter unrelated to whether Dorel’s defective chest clip caused injuries to Lincoln over and above that which would have occurred merely from the Jeep colliding with water. Just as patients are entitled to subsequent non-negligent medical treatment for injuries they caused to themselves, consumers are entitled to safe products — and in particular safe products that were offered for sale as designed to prevent injuries in the event of accidents - being utilized in an environment in which the manufacturer knew or should have known its product will be utilized.

For More Information About this Case, see the Court Docket Sheet

Outcome: Jury verdict in favor of Dorel Juvenile Group, Inc. d/b/a Cosco Home and Office Products

Plaintiff's Experts: Charles Powell; James Williams, design process; Gerald Rosenbluth, automatic transmission design

Defendant's Experts:

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